Revocatory Effect of Divorce on Dispositions (5-1.4) PDF

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New York Trust and Estates EPTL Lecture - Divorce Standard...

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Trust and Estates Notes Spring 2020

Revocatory Effect of Divorce on Dispositions (5-1.4) EPTL §5-1.4. Revocatory effect of divorce, annulment, or nullity….to former spouse • (a) Unless otherwise noted by specific terms, a divorce, annulment AUTOMATICALLY revokes: o 1) any disposition or appointment of property made by will to the former spouse ▪ Includes security registration in beneficiary form of any security (life insurance policy, pension, retirement, revocable trust in bank account or totten trust form) o 2) any provision conferring power of appointment of disposition on the former spouse o 3) any nomination of the former spouse to serve in any fiduciary or representative capacity ▪ includes as a personal rep, executor, trustee, conservator, agent, or attorney in fact • (b) o (1) Provisions of a governing instrument are given effect as if the former spouse had predeceased the divorced individual as of the time of the revocation ▪ This can help allow the estate to be given to the next possible taking o (2) if a disposition, appointment, provision, or nomination is revoked for the above reasons, it will be REVIVED by remarriage to former spouse. ▪ Remarriage will NOT revive the gift to the spouse if the old will was revoked by destruction or one of the parties making a new will

• So a separation agreement exonerates each spouse from all contracts, including the contract to keep the wills irrevocable Survivor’s Right to Consume or Make Gifts • Intervivos gifts by survivor can be set aside when the survivor is under a CONTRACT for a will • Can NOT make SUBSTANTIAL GIFTS in your life when you are under CONTRACT for a will • Consumption by survivor is ok, but beneficiaries may want to complain if spending is excessive....